CFCE Blog

No majority vote for health care ballot deal

By Loren Kaye
Posted 5/03/2007

In an otherwise perceptive column http://www.sacbee.com/110/story/162543.html on how a health care deal might come together, Sacramento Bee columnist Daniel Weintraub suggests that such a deal – including a possible tax increase – could be placed on the ballot by a simple majority vote of the Legislature.  Wrong.

 

Weintraub writes:

 

The breakthrough might come if the Democrats agreed to an individual mandate and the governor, in exchange, agreed to regulate insurance company rates. And rather than an employer mandate, which probably violates federal law, they could decide to tax all employers at a rate of 1 percent of payroll. Such a tax would generate about $7 billion a year, almost $3 billion more than Schwarzenegger is proposing with all his fees and charges combined.

 

With a simple majority vote and the signature of the governor, such a plan could be placed on the ballot. It would likely have the support of labor, doctors, hospitals and probably some employers, if they saw it as their last chance to avoid a mandate. [E.A.]

 

In fact, the Constitution explicitly authorizes the Legislature to use only three mechanisms to place a measure on the ballot. The only statutory measures the Legislature can put to the voters are (1) bond acts (Article XVI, Section 2(a)), which require a two-thirds vote (Article XVI, Section 1), or (2) where the Legislature proposes changing the terms of a previously-adopted ballot initiative statute (Article II, Section 10(c), which requires a simple majority vote. The Legislature may also place proposed constitutional amendments on the ballot (Article XVIII, Section 1), with a two thirds vote but without needing gubernatorial approval.

 

The Constitution does not explicitly provide for any other type of measure to be placed on the ballot.

 

It makes sense that the Legislature cannot seek voter approval for a statute that neither amends a previous statutory initiative or asks approval for long-term debt. After all, the Legislature is the body that approves statutes. It doesn't make sense that the Legislature would abdicate to the people its responsibility to adopt statutes. In fact, it works the other way: when the people add or repeal a statute by initiative or referendum, they have stepped into the shoes of the Legislature. ("The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." Article II, Section 8(a).) It would serve no logical purpose for the Legislature to pass a statute to place a measure on the ballot for the people again to pass by statute.

 

Two examples illustrate this point:  Governor Deukmejian wanted to have the people approve a ballot measure to raise the gas tax by nine cents in 1990. After discovering that the Legislature could not put a measure on the ballot directly to raise the tax by statute, the Governor proposed and the Legislature adopted SCA 1, which among other things amended the Constitution to raise the appropriations limit to allow the gas tax to be spent. A companion bill to actually raise the gas tax was passed with a two-thirds vote, but could not take effect unless Proposition 111 passed. This mechanism was used not to avoid a two-thirds vote (they actually needed two of them), but to provide political cover to those who voted to raise the tax (and sign the bill).

 

Governor Wilson also wanted to place a tax increase on the ballot for voter approval. When he was faced with the inability of the Legislature to put up a statute, he decided to make it a constitutional amendment (requiring - and getting - two-thirds approval). The half-cent sales tax increase was adopted by the voters and enshrined as Article XIII, Section 35(a) of the Constitution, providing funding for local government public safety.

 

It’s pretty clear that such a mechanism being floated by Weintraub would be the ultimate end run around Prop 13’s requirement that the Legislature adopt tax increases with a two-thirds vote.  In fact, if it were legal, the Legislature certainly would have tried it before with taxes that command initial popular support (e.g., sin taxes, severance taxes, high-earner taxes).

 

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